Robert A. Fisher is an associate with Foley Hoag LLP in Boston, where he focuses on labor & employment law.
A recent decision of the National Labor Relations Board regarding who is a supervisor under federal labor law, Oakwood Healthcare, Inc., has labor unions in an uproar. Both the AFL-CIO and Change to Win, the two major labor federations, have blasted the decision as depriving millions of American workers of their rights under the National Labor Relations Act. Labor unions are so upset that the AFL-CIO has filed a complaint with the International Labor Organization of the United Nations claiming that Oakwood violates international labor law principles. The fear, as articulated by the dissent in Oakwood, is that employees will lose their rights under the National Labor Relations Act simply by being labeled as supervisors by their employers. But lost in all of the rhetoric is what the majority of the board actually said in Oakwood about who is a supervisor. In no way can the majority’s decision be characterized as giving employers carte blanche to reclassify employees as supervisors. Rather, under Oakwood, the individual’s actual functions and the degree to which he or she exercises independent judgment in performing those functions determines supervisory status.
A starting point for understanding the board’s decision in Oakwood is the statute itself. The National Labor Relations Act defines a “supervisor” as:
any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature but requires the use of independent judgment.
While labor unions are deriding the board for its interpretation of this definition in Oakwood, the real battle was decided by the U.S. Supreme Court five years ago. In NLRB v. Kentucky River, the Supreme Court was asked to review the board’s determination that six registered nurses were not supervisors. In doing so, the Court articulated a three-part test for determining who is a supervisor based upon the statutory definition: (1) the individual holds authority to exercise any one of the 12 supervisory functions listed in the statutory definition; (2) the exercise of that authority requires the use of independent judgment; and (3) the individual’s authority is held in the interest of the employer. Applying this test to the registered nurses at issue, the Court chastised the board for its conclusion that they were not supervisors. Although the nurses directed other employees, the board had determined that they did not exercise independent judgment in doing so but instead utilized what the board characterized as “ordinary technical or professional judgment.” The Court rejected this formulation as creating a distinction not borne out by the statutory language.
Oakwood represents the board’s first attempt at revisiting these issues after Kentucky River. At issue in the case was a union’s effort to organize the employer’s 181 registered nurses. Twelve of those nurses permanently served as “charge nurses.” Charge nurses were responsible for overseeing their patient care units and assigned other nurses and employees to particular patients. In addition to the permanent charge nurses, other nurses took turns serving in this capacity. The frequency and regularity that one of these nurses acted as a “rotating” charge nurse depended upon the particular patient care unit and the number of nurses in that unit. The regional director determined that neither the permanent charge nurses nor the rotating charge nurses were supervisors and the employer petitioned the board to review that determination.
In its decision, the board attempted to explain two of the supervisory functions listed in the statute -- “assign” and “responsibly to direct” -- in light of the Supreme Court’s decision in Kentucky River. Relying on the dictionary definition of the word, the board explained that “to assign” refers to “the act of designating an employee to a place (such as a location, department or wing), appointing an employee to a time (such as a shift or overtime period), or giving significant overall duties, i.e. tasks, to an employee.” As to the function “responsibly to direct,” the board relied on appellate court precedent to hold that “for direction to be ‘responsible,’ the person directing and performing the oversight must be accountable for the performance of the task by the other, such that adverse consequences may befall the one providing the oversight if the tasks performed by the employee are not performed properly.”
The board also explained what constitutes the exercise of independent judgment. Relying again on the dictionary definitions of the words, the board stated that “an individual must at minimum act, or effectively recommend action, free of the control of others and form an opinion or evaluation by discerning and comparing data.” However, the board emphasized that this is a matter of degree, which will vary based upon the particular circumstances. Finally, the board held that an individual is not a supervisor if he or she does not spend a substantial and regular portion of his or her time performing supervisory functions.
None of these definitions reflects an unnatural reading of the statutory language, and the board’s application of these terms demonstrates that the tests are results-neutral. In Oakwood, the board concluded that the 12 permanent charge nurses were supervisors because they assigned employees using independent judgment. However, the board held that the remaining nurses who acted as rotating charge nurses were not supervisors because they did not spend a substantial and regular part of their time performing supervisory functions. And in two companion cases, Croft Metals, Inc. and Golden Crest Healthcare Center, the board held that none of the individuals at issue were supervisors. In Croft Metals, the board concluded that certain lead persons had the authority “responsibly to direct” other employees but did so only in a routine or clerical fashion. Likewise, in Golden Crest, the board found that the employer’s nurses, including charge nurses, did not “assign” employees because they could only request but not require other employees to work past the end of their shifts or come in from home. Nor did they have the authority to direct other employees, because the employer failed to prove that the nurses were accountable for the work performance of subordinates. Taken together, only 12 of the employees at issue in these three cases were found to be actual supervisors.
Thus, while critics have implied that the board has single-handedly reclassified millions of employees as supervisors, Oakwood and its companion cases do not bear out that conclusion. Instead, the decisions make clear that whether an individual is a statutory supervisor will be decided on a case-by-case basis. Although the “permanent” charge nurses in Oakwood were found to be supervisors, the board reached the opposite conclusion regarding the charge nurses at issue in Golden Crest, demonstrating that specific facts regarding an individual’s actual duties, not job titles, will be controlling. The worst that can be said about the decisions is that they provide a roadmap regarding what facts will establish supervisory status. However, clarity in the law in this regard should be viewed as a positive development for both employers and employees alike.
 348 NLRB No. 37 (Sept. 29, 2006).
 See www.aflcio.org/joinaunion/kyriver.cfm; www.changetowin.org/for-the-media/press-releases-and-statements/change-to-win-blasts-decision-in-Kentucky-river-cases.html.
 See www.aflcio.org/joinaunion/voiceatwork/upload/ilo_complaint.pdf.
 See Oakwood, 348 NLRB No. 37 at 15 (dissenting opinion) (“Today’s decision threatens to create a new class of workers under Federal labor law: workers who have neither the genuine prerogatives of management, nor the statutory rights of employees.”).
 348 NLRB No. 37 at p. 2.
 348 NLRB No. 38 (Sept. 29, 2006).
 348 NLRB No. 39 (Sept. 29, 2006).
 348 NLRB No. 38 at p. 4.
 348 NLRB No. 39, p. 3.